Kitzmiller v. Dover Area School District

Decision of the Court (Concluded)

Although we have found that Defendants' conduct
conveys a strong message of endorsement of the Board members' par
ticular religious view, pursuant to the endorsement test, the
better practice in this Circuit is for this Court to also
evaluate the challenged conduct separately under the Lemon test.18SeeChild Evangelism, 386 F.3d at 530-35; Modrovich, 385 F.3d at 406; Freethought, 334 F.3d at 261.

As
articulated by the Supreme Court, under the Lemon test, a government-sponsored message
violates the Establishment Clause of the First Amendment if: (1)
it does not have a secular purpose; (2) its principal or primary
effect advances or inhibits religion; or (3) it creates an
excessive entanglement of the government with religion. Lemon, 403 U.S. at 612-13. As the Lemon test is
disjunctive, either an improper purpose or an improper effect
renders the ID Policy invalid under the Establishment
Clause.19

We
will therefore consider whether (1) Defendants' primary purpose
was to advance religion or (2) the ID Policy has the primary
effect of promoting religion.

Initially, we note that the central inquiry is
whether the District has shown favoritism toward religion
generally or any set of religious beliefs in particular:

The
touchstone for our analysis is the principle that the 'First
Amendment mandates governmental neutrality between religion and
religion, and between religion and nonreligion.' When the
government acts with the ostensible and predominant purpose of
advancing religion, it violates the central Establishment Clause
value of official religious neutrality, there being no neutrality
when the government's ostensible object is to take sides.

McCreary, 125 S. Ct. at
2733 (quoting Epperson, 393 U.S. at 104). As the Supreme Court
instructed in Edwards, Lemon's purpose prong "asks whether
government's actual purpose is to endor se or disapprove of
religion. A governmental intention to promote religion is clear
when the State enacts a law to serve a religious purpose."
Edwards, 482 U.S. at 583 (quoting Lynch, 465 U.S. at 690) (O'Connor, J.,
concurring).

The
purpose inquiry involves consideration of the ID Policy's
language, "enlightened by its context and contemporaneous
legislative history[,]" including, in this case, the broader
context of historical and ongoing religiously driven attempts to
advance creationism while denigrating evolution.20Selman, 390 F. Supp. 2d at 1300; Edwards, 482
U.S. at 590-92, 594-95 (in addition to "[t]he plain meaning of
the [enactment's] words, enlightened by their context and the
contemporaneous legislative history," Supreme Court also looks
for legislative purposes in "the historical context of the
[enactment], and the specific sequence of events leading to [its]
passage"); seealsoEpperson, 393 U.S. at 98-101; McLean, 529 F.
Supp. at 1263 (looking to history of Christian Fundamentalism
nationally and to Arkansas' "long history of official opposition
to evolution which is motivated by adherence to Fundamentalist
beliefs," and holding that, "[i]n determining the legislative
purpose of a statute, courts may consider evidence of the
historical context of the Act, the specific sequence of events
leading up to passage of Act, departures from normal procedural
sequences, substantive departures from the normal, and
contemporaneous statements of the legislative sponsor.")
(citations omitted).

The
disclaimer's plain language, the legislative history, and the
historical context in which the ID Policy arose, all inevitably
lead to the conclusion that Defendants consciously chose to
change Dover's biology curriculum to advance religion. We have
been presented with a wealth of evidence which reveals that the
District's purpose was to advance creationi sm, an inherently
religious view, both by introducing it directly under the label
ID and by disparaging the scientific theory of evolution, so that
creationism would gain credence by default as the only apparent
alternative to evolution, for the reasons that follow.

We
will begin the Lemon purpose inquiry
by providing a detailed chronology of the events that transpired
in Dover leading up to the enactment of the ID Policy at
issue.

We
will initially supply background information on the composition
of the Board, which consists of nine seats. The nine members of
the Board in 2004 were Alan Bonsell, William Buckingham, Sheila
Harkins, Jane Cleaver, Heather Geesey, Angie Yingling, Noel
Wenrich, Jeff Brown, and Casey Brown. Wenrich and Cleaver
resigned on October 4, 2004, Casey and Jeff Brown resigned on
October 18, 2004, and Yingling resigned verbally in November 2004
and in writing February 2005. (Trial Tr.
vol. 34, Harkins Test., 113, Nov. 2, 2005; Cleaver Dep. at
15, June 9, 2005). During 2004, Bonsell was President of the
Board and as President, he appointed Buckingham to be Chair of
the Board's Curriculum Committee. (32:86-87 (Bonsell); 34:39 (Harkins)). As Board President,
Bonsell also served as an exofficio member of the Curriculum
Committee. (32:116 (Bonsell)).

The
Board held a retreat on January 9, 2002, several weeks after
Bonsell joined the Board. Superintendent Nilsen's contemporaneous
notes reveal that Bonsell identified "creationism" as his number
one issue and "school prayer" as his number two issue. (P-21).
Although Bonsell claims he cannot recall raising such subjects
but does not dispute that he did, in fact, raise them, the
overwhelming evidence indicates that he raised the issues of
creationism and school prayer during the January 2002 Board
retreat.21

The
Board held another retreat the following year, on March 26, 2003,
in which Bonsell again raised the issue of "creationism" as an
issue of interest as reflected in Dr. Nilsen's contemporaneous
notes. (35:50-53 (Baksa); P-25). For
the second, consecutive time, Bonsell does not dispute that he
raised the issue but his testimony indicates that he cannot
recall doing so, despite the fact that Jeff Brown, Barrie
Callahan, Bertha Spahr, and Assistant Superintendent Baksa
testified otherwise. (32:75
(Bonsell); Trial Tr. vol. 8, J. Brown
Test., 50-51, Sept. 29, 2005) (Recalled Bonsell say at the March
26, 2003 retreat that he felt creationism "belonged in biology
class alongside evolution."); 3:126-27 (B. Callahan) (Her testimony and
notes took during the March 26, 2003 retreat reveal that Bonsell
said he wanted creationism taught 50/50 with evolution in biology
class.).

In
fact, Trudy Peterman, then principal of Dover High School, sent a
memo to Assistant Superintendent Baksa and Science Department
Chair Bertha Spahr with a copy sent to Dr. Nilsen on April 1,
2003. This memo reports that Peterman learned from Spahr that
Baksa said on March 31, 2003, that an unidentified Board member
"wanted fifty percent of the topic of evolution to involve the
teaching of Creationism." (P-26). Although defense witnesses
testified that Peterman was known to exaggerate situations, the
weight of the evidence reveals that the essential content of the
memo was indeed accurate.

In
that regard, Barrie Callahan's testimony and handwritten notes
from the March 26, 2003 retreat find corroboration in
Superintendent Nilsen's contemporaneous note that Bonsell raised
the issue of "creationism," as do they in the Peterman memo.
Additionally, Spahr confirmed that she had a conversation with
Baksa, as reported in the Peterman memo, and that Baksa told her
Bonsell wanted to have creationism share equal time with
evolution in the curriculum. (13:72-73 (Spahr)). Third, Baksa confirmed
that he had a conversation with Spahr, as reported in the
Peterman memo, in which he told her that Bonsell was looking "for
a 50/50 split with Darwin and some alternative." (35:53-56 (Baksa)).

Although Baksa claims he does not recall Bonsell
identifying "creationism" as the subject with which he wanted to
share equal time with evolution, nor that Bonsell mentioned
"creationism" at any time up until April 1, 2003, we do not find
his testimony on this point to be credible. We accordingly find
that Bonsell is clearly the unnamed Board member referred to in
Peterman's memo who wanted fifty percent of the topic of
evolution to involve the teaching of creationism.

Apart from two consecutive Board retreats, Bonsell
raised the issue of creationism on numerous other occasions as
well. When he ran for the Board in 2001, Bonsell told Jeff Brown
he did not believe in evolution, that he wanted creationism
taught side-by-side with evolution in biology class, and that
taking prayer and Bible reading out of school was a mistake which
he wanted reinstated in the Dover public schools. (8:48-49 (J. Brown)). Subsequently, Bonsell
told Jeff Brown he wanted to be on the Board Curriculum Committee
because he had concerns about teaching evolution and he wanted to
see some changes in that area. (8:55
(J. Brown)). Additionally, Nilsen complained to Jeff Brown that
each Board President had a new set of priorities and Bonsell's
priority was that of creationism. (8:53 (J. Brown)). It is notable, and in fact
incredible that Bonsell disclaimed any interest in creationism
during his testimony, despite the admission by his counsel in
Defendants' opening statement that Bonsell had such an interest.
(1:19). Simply put, Bonsell
repeatedly failed to testify in a truthful manner about this and
other subjects. Finally, Bonsell not only wanted prayer in
schools and creationism taught in science class, he also wanted
to inject religion into the social studies curriculum, as
evidenced by his statement to Baksa that he wanted students to
learn more about the Founding Fathers and providing Baksa with a
book entitled Myth of Separation by
David Barton.22 (36:14-15, 17 (Baksa),
P-179).

Shortly after Baksa took a position with the DASD
in the fall of 2002, he and Bonsell, then Chair of the Board
Curriculum Committee, had discussions in which Bonsell expressed
concern about the teaching of evolution, the presentation of
Darwin in a biology textbook used at Dover, and felt that Darwin
was presented as a fact, not a theory. (26:62-64 (Baksa); 35:55 (Baksa)). Prior to the fall of 2003,
Baksa discussed Bonsell's evolu tionary concerns with the
teachers, including Bonsell's problem with the teach ing of the
origin of life, by which Bonsell meant how species change into
other species, aspects of the theory of evolution also known as
macroevolution and speciation. (35:66-68 (Baksa)).

Baksa then arranged for a meeting between Bonsell
and science teachers in the fall of 2003 in which Jennifer
Miller, the senior biology teacher, acted as spokesperson for the
teachers. (Trial Tr. vol. 12, J.
Miller, 107-09, Oct. 6, 2005; 35:68
(Baksa)). Miller testified that Bonsell was specifically
concerned that the teachers conveyed information to students in
opposition to what parents presented at home leaving students
with the impression that "somebody is lying." (12:111 (J. Miller)). Miller explained that
evolution is taught as change over time with emphasis upon origin
of species, not origin of life. Bonsell left the meeting with the
understanding that the "origins of life" is not taught, which
pleased him because the concept of common ancestry offends his
personal religious belief that God created man and other species
in the forms they now exist and that the earth is only thousands
of years old. (33:54-58, 115
(Bonsell)).

Prior to the fall of 2003, no Dover administrator
or Board member had ever met with the biology teachers and
questioned them as to how they taught evolution, or any other
aspect of biology. (Trial Tr. vol.
36, Linker Test., 75, Nov. 3, 2005). The result of the
unprecedented fall 2003 meeting was that it had an impact upon
how biology teachers subsequently taught evolution in Dover.
First, before the meeting with Bonsell, biology teacher Robert
Linker had a practice of explaining that creationism was based on
"Bibles, religion, [and] Biblical writings," noting that it was
illegal to discuss creation in public school. (36:83 (Linker)). After the meeting, however,
Linker changed his prior practice by ceasing any mention of
creationism at the beginning of the evolution section, as did he
stop using helpful Discovery Channel evolution videos as teaching
aides. (36:82-85 (Linker)). Linker
testified that he changed his practices in the classroom because
the unusual meeting with Bonsell alerted him to a controversy
surrounding how he taught evolution. (36:84-85 (Linker)). Linker additionally
testified that Jen Miller, a senior biology teacher, changed her
practice of having the students create an evolution time-line in
the hallway, which addressed how various species developed over
millions of years. (36:86-87
(Linker)).

Therefore, although Defendants have asserted that
the ID Policy has the secular purposes of promoting critical
thinking and improving science education, the opposite of such
purposes occurred in fact as biology teachers had already began
to omit teaching material regarding the theory of evolution in
the months preceding the adoption of the ID Policy.

At
some point before June 2004, Seth Cooper, an attorney with the
Discovery Institute contacted Buckingham and two subsequent calls
occurred between the Discovery Institute and Buckingham. Although
Buckingham testified that he only sought legal advice which was
provided in the phone calls, for which Defendants asserted the
attorney-client privilege, Buckingham and Cooper discussed the
legality of teaching ID and gaps in Darwin's theory. (29:133-143 (Buckingham); 30:9 (Buckingham)). The Discovery Institute
forwarded Buckingham a DVD, videotape, and book which he provided
to Nilsen to give the science teachers. (29:130-131 (Buckingham); 25:100-01 (Nilsen); 26:114-15 (Baksa)). Late in the 2003-04
school year, Baksa arranged for the science teachers to watch a
video from the Discovery Institute entitled "Icons of Evolution"
and at a subsequent point, two lawyers from the Discovery
Institute made a legal presentation to the Board in executive
session. (Trial Tr. vol. 4, B. Rehm
Test., 48- 49, Sept. 27, 2005; 33:111-12 (Bonsell)).

In
June 2003, the Board approved funds for new science textbooks,
including a biology textbook, the 2002 edition of Biology written by Plaintiffs' lead expert Kenneth
Miller; however, the Board did not approve the purchase of such
biology textbook despite its recommendation by the faculty and
administration. (3:130-31 (B.
Callahan); 29:33 (Buckingham)). In
fact, Buckingham testified that as of June 2004, the Board was
delaying approval of Biology because
of the book's treatment of evolution and the fact that it did not
cover any alternatives to the theory of evolution. (29:33-34 (Buckingham)).

Plaintiffs introduced evidence that at public
school board meetings held on June 7, 2004 and June 14, 2004,
members of the Board spoke openly in favor of teaching
creationism and disparaged the theory of evolution on religious
grounds. On these important points, Plaintiffs introduced the
testimony of Plaintiffs Fred and Barrie Callahan, Bryan and
Christy Rehm, Beth Eveland, former school Board members Casey and
Jeff Brown and William Buckingham, teachers Bertha Spahr and
Jennifer Miller, and newspaper reporters Heidi Bernhard-Bubb and
Joseph Maldonado. We are in agreement with Plaintiffs that with
the exception of Buckingham, the testimony of these witnesses was
both credible and convincing, as will be discussed below.

We
will now provide our findings regarding the June 7, 2004 Board
meeting. First, the approval of several science textbooks
appeared on the agenda for the meeting, but not approval for the
biology textbook. (P-42 at 8-9). After Barrie Callahan asked
whether the Board would approve the purchase of the 2002 edition
of the textbook entitled Biology,
Buckingham told Callahan that the book was "laced with Darwinism"
and spoke in favor of purchasing a textbook that included a
balance of creationism and evolution. (P-46/P-790; 35:76-78 (Baksa); 24:45-46 (Nilsen); 3:135-36 (B. Callahan); 4:51-52 (B. Rehm); 6:62-63 (C. Rehm); 7:25-26 (C. Brown)). With surprising candor
considering his otherwise largely inconsistent and non-credible
testimony, Buckingham did admit that he made this statement.
Second, Buckingham said that the Board Curriculum Committee would
look for a book that presented a balance between creationism and
evolution. (P-45/P-805; Trial Tr. vol.
30, Bernhard-Bubb Test., 96, Oct. 27, 2005; P-46/P-790;
Trial Tr. vol. 31, Maldonado Test.,
59-60, Oct. 28, 2005). Third, Bonsell said that there were only
two theories that could possibly be taught, creationism and
evolution, and as long as both were taught as theories there
would be no problems for the District. (P-46/P-790; 6:65 (C. Rehm)). Fourth, Buckingham spoke in
favor of having a biology book that included creationism.
(P-47/P-791; 8:60-61 (J. Brown);
7:33 (C. Brown); 3:137-38 (B . Callahan); 30:89-90, 105-06, 110-11 (Bernhard-Bubb);
31:60, 66 (Maldonado)). Fifth, both
Wenrich and Bonsell spoke in favor of having a biology book that
included creationism. (P-47/P-791; 8:60 (J. Brown); 7:33 (C. Brown); 30:89-90, 105-06, 110-11 (Bernhard-Bubb);
31:66 (Maldonado); 3:137-38 (B. Callahan)). Sixth,
Superintendent Nilsen said that the District was looking for a
textbook that presented "all options and theories" and never
challenged the accuracy of that quotation. (25:119-20 (Nilsen)). Seventh, Buckingham
testified that he had previously said the separation of church
and state is a myth and not something that he supports.
(P-44/P-804; P-47/P-791; 3:141-42 (B.
Callahan); 7:32-33 (C. Brown);
31:66-67 (Maldonado)). Buckingham
also said: "It is inexcusable to have a book that says man
descended from apes with nothing to counterbalance it."
(P-44/P-804; 30:77-78
(Bernhard-Bubb)). Finally, after the meeting, Buckingham stated:
"This country wasn't founded on Muslim beliefs or evolution. This
country was founded on Christianity and our students should be
taught as such." (P-46/P-790; 31:63
(Maldonado)).

We
will now provide our findings regarding the June 14, 2004 Board
meeting. Initially, we note that the subject of the biology
textbook did not appear on the agenda of the meeting but members
of the public made comments, and the Board continued to debate
the subject of the biology textbook. Second, Buckingham's wife,
Charlotte, gave a speech that exceeded the normal time protocols
during the public comment section in which she explained that
"evolution teaches nothing but lies," quoted from Genesis, asked
"how can we allow anything else to be taught in our schools,"
recited gospel verses telling people to become born again
Christians, and stated that evolution violated the teachings of
the Bible. (P-53/P-793; 4:55-56 (B.
Rehm); 6:71 (C. Rehm); 7:34-35 (C. Brown); 8:104-05 (F. Callahan); 8: 63 (J. Brown);
30:107-08 (Bernhard-Bubb); 31:76-77 (Maldonado); 33:37-43 (Bonsell); 29:82-83 (Buckingham); 12:125 (J. Miller); 13:84 (Spahr)). In her deposition, Charlotte
Buckingham admitted that she made a speech at the June 14, 2004
Board meeting in which she argued that creationism as set forth
in Genesis should be taught at Dover High School and that she
read quotations from scripture as part of her speech. (C.
Buckingham Dep. at 19-22, April 15, 2005). During this religious
speech at a public Board meeting, Board members Buckingham and
Geesey said "amen." (7:35 (C.
Brown)). Third, Buckingham stood by his opposition to the 2002
edition of the textbook entitled Biology. Fourth, Bonsell and Wenrich said they
agreed with Buckingham that creationism should be taught to
balance evolution. (P-806/P-54). Fifth, Buckingham made several
outwardly religious statements, which include the following
remarks. "Nowhere in the Constitution does it call for a
separation of church and state." He explained that this country
was founded on Christianity. Buckingham concedes that he said "I
challenge you (the audience) to trace your roots to the monkey
you came from." He said that while growing up, his generation
read from the Bible and prayed during school. He further said
"liberals in black robes" were "taking away the rights of
Christians" and he said words to the effect of "2,000 years ago
someone died on a cross. Can't someone take a stand for him?"
(P-806/P-54; 12:126 (J. Miller);
13:85 (Spahr); 30:105-07 (Bernhard-Bubb); P-793/P-53;
31:75-76, 78-79 (Maldonado);
29:71 (Buckingham); 35:81-82 (Baksa); 6:73 (C. Rehm); 4:54-55 (B. Rehm); 6:96 (Eveland); 7:26-27 (C. Brown); 8:63 (J . Brown); 8:105-06 (F. Callahan)).

Finally, although Buckingham, Bonsell, and other
defense witnesses denied the reports in the news media and
contradicted the great weight of the evidence about what
transpired at the June 2004 Board meetings, the record reflects
that these witnesses either testified inconsistently, or lied
outright under oath on several occasions, and are accordingly not
credible on these points.

Near the end of the school year in June 2004, the
Board Curriculum Committee met with the teachers to discuss a
list of Buckingham's concerns about the textbook Biology. (12:114-15
(J. Miller); 35:82 (Baksa); P-132).
All of Buckingham's concerns related to the theory of evolution
and included such objections as the reference to a species of
finch known as Darwin's finch simply because it referred to
Darwin and his viewpoint that the textbook did not give "balanced
presentation," by which he meant that it did not include the
"theory of creationism with God as creator of all life."
(7:45-48 (C. Brown)).

A
large part of the meeting addressed Buckingham's concern that the
teachers were teaching what he referred to as "origins of life,"
apparently including the origin of species and common ancestry.
Jen Miller reiterated that the teachers do not address origins of
life, only origin of species. (12:118-120 (J. Miller)).

Also at the meeting Baksa provided those in
attendance with several documents including a survey of biology
books used in private religious schools in York County, a product
profile of a biology textbook used at Bob Jones University, and a
document entitled "Beyond the Evolution vs. Creation Debate." The
second page of the "Beyond the Evolution vs. Creation Debate"
document reads "Views on the Origin of the Universe and Life" and
it explains the difference between "Young Earth Creationism
(Creation Science)," "Progressive Creationism (Old Earth
Creation)," "Evolutionary Creation (Theistic Creation)," "Deistic
Evolution (Theistic Evolution)," and "Dysteleological Evolution
(Atheistic Evolution)." Interestingly and notably, the example
provided under the Progressive Creation (Old Earth Creation) is
that of the "Intelligent Design Movement, Phillip Johnson,
Michael Behe." (P-149).

Accordingly, as accurately submitted by
Plaintiffs, we find that the Board Curriculum Committee knew as
early as June 2004 that ID was widely considered by numerous
observers to be a form of creationism. We do not find it
coincidental that based upon the previously recited statements
and history, some form of creationism was precisely what the
Committee wanted to inject into Dover's science classrooms.

Moreover, at the meeting, although the teachers
had already watched the video "Icons of Evolution" from the
Discovery Institute, at Buckingham's insistence they agreed to
review it again and consider using in class any portions that
aligned with their curriculum. (26:122 (Baksa)). Although Baksa believed
that the teachers had already determined there were no parts in
the video that would be appropriate for use in class, the
teachers capitulated in order to secure Buckingham's approval to
purchase the much needed biology textbook. (35:93-94 (Baksa)).

In
the midst of this panoply, there arose the astonishing story of
an evolution mural that was taken from a classroom and destroyed
in 2002 by Larry Reeser, the head of buildings and grounds for
the DASD. At the June 2004 meeting, Spahr asked Buckingham where
he had received a picture of the evolution mural that had been
torn down and incinerated. Jen Miller testified that Buckingham
responded: "I gleefully watched it burn." (12:118 (J. Miller)). Buckingham disliked the
mural because he thought it advocated the theory of evolution,
particularly common ancestry. (26:120 (Baksa)). Burning the evolutionary
mural apparently was insufficient for Buckingham, however.
Instead, he demanded that the teachers agree that there would
never again be a mural depicting evolution in any of the
classrooms and in exchange, Buckingham would agree to support the
purchase of the biology textbook in need by the students.
(36:56-57 (Baksa) (emphasis
added)).

Finally, Baksa's testimony revealed that there was
some mention of the words "intelligent design" at the meeting but
he cannot recall who raised the subject. In fact, to the best of
his knowledge at the time, ID amounted to nothing more than two
words replacing one word, creationism, used by Buckingham at a
Board meeting earlier that month. (35:96-98 (Baksa)). Baksa's testimony
supports Plaintiffs' argument that at a point in June 2004,
creationism began to morph into ID in the minds of the Board's
thought leaders.

At
some point before late July 2004, Buckingham contacted the Thomas
More Law Center (hereinafter "TMLC") for the purpose of seeking
legal advice and spoke with Richard Thompson, President and Chief
Counsel for the TMLC. (30:10-12
(Buckingham)). The TMLC proposed to represent the Board, and
Buckingham accepted the offer on the Board' s behalf. Buckingham
and the Board first learned of the creationist textbook
Pandas from Richard Thompson at some
point before late July 2004. (29:107-08 (Buckingham); 30:10-12, 15-16 (Buckingham)).

In
July 2004, after the teachers discovered that there was a 2004
edition of the textbook Biology
available, the Board agreed to defer consideration of purchasing
a new textbook at its July 12, 2004 meeting until it could review
the 2004 edition. (12:127 (J.
Miller); 13:30 (Spahr)). In July
2004, Spahr, Miller, and Baksa met to review the 2004 edition and
compared the sections on evolution with those found in the 2002
edition. They then created a document delineating the
differences. (12:127-29 (J.
Miller)).

On
August 2, 2004 the Board met and one of the agenda items was the
approval of the 2004 edition of Biology. A few days prior to this meeting, Casey
Brown received a telephone call from Baksa who told her that
Buckingham recommended that the District purchase Pandas as a supplemental textbook. (7:52- 53 (C. Brown); 8:64 (J. Brown)). Jeff Brown then went to
Harkins' home to pick up a copy of Pandas at which point she told him that she wanted
the school District to purchase the book. (8:65 (J. Brown)).

Subsequently, at the August 2, 2004 meeting,
Buckingham opposed the purchase of Biology, which was recommended by the faculty and
administration, unless the Board also approved the purchase of
Pandas as a companion text. Only eight
members of the Board were present on August 2, 2004 and the
initial vote to approve the purchase of Pandas failed on a four to four vote with
Buckingham, Harkins, Geesey, and Yingling voting for it.
(8:68 (J. Brown); 29:105-06 (Buckingham); P-67). After
Buckingham stated that he had five votes in favor of purchasing
Pandas and if the Board approved the
purchase of Pandas, he would release
his votes to also approve the purchase of Biology, Yingling
changed her vote and the motion to approve the purchase of
Biology passed. (P-67; 8:68-69 (J. Brown)). At trial, Buckingham
testified that at the meeting he specifically said "if he didn't
get his book, the district would not get the biology book."
(29:106 (Buckingham)).

On
August 26, 2004, Board Solicitor Stephen S. Russell sent an email
to Nilsen which indicated he spoke with Richard Thompson of the
TMLC and that "[t]hey refer to the creationism issue as
'intelligent design.'" (P-70). The email proceeded to explain the
following:

They [TMLC] have background knowledge and have
talked to school boards in West Virginia and Michigan about
possible litigation. However, nothing has come about in either
state. This suggests to me that no one is adopting the textbook
because, if they were, one can safely assume there would have
been a legal challenge by someone somewhere . . . I guess my
main concern at themoment, is that even if use of the
text is purely voluntary, this may still make it very difficult
to win a case. I say this because one of the common themes in
some of the US Supreme Court decisions, especially dealing with
silent meditation, is that even though something is voluntary, it
still causes a problem because the practice, whatever it may be,
was initiated for religious reasons. One of the best examples
comes out of the silent meditation cases in Alabama which the
court struck down because the record showed that the statute in
question was enacted for religious reasons. My concern for
Doveris that in the last several years there has been a
lot of discussion, news print, etc. for putting religion back in
the schools. In my mind this would add weight to a lawsuit
seeking to enjoin whatever the practice might be.

Id. (emphasis added).
Nilsen subsequently shared this email with everyone present at
the Board Curriculum Committee meeting on August 30, 2004,
including Buckingham, Bonsell, and Harkins. (25:135-36 (Nilsen)). Additionally, both
Nilsen and Baksa admitted that they knew the email referred to
the news reports of the June 2004 meetings. (25:135-36, 138-39 (Nilsen); 35:105-06, 111-12 (Baksa)).

There is no evidence that the Board heeded even
one iota of the Solicitor's detailed and prudent warning. We also
find the email to be persuasive, additional evidence that the
Board knew that ID is considered a form of creationism.

On
August 30, 2004, the Board Curriculum Committee met with Spahr,
Miller, Nilsen, Baksa, Bonsell, Buckingham, Harkins, and Casey
Brown with the principal subject of discussion being Pandas and how it would be used in the classroom.
(12:134 (J. Miller)). Although Spahr
expressed concern that the textbook taught ID, which she equated
with creationism, Buckingham wanted Pandas to be used in the classroom as a comparison
text side-by-side the standard biology textbook. (12:135 (J. Miller); 29:104-05 (Buckingham)). Despite the fact
that the teachers strongly opposed using Pandas as a companion text, they agreed that
Pandas could be placed in the
classroom as a reference text as a compromise with the Board.
(29:111 (Buckingham); 12:136 (J. Miller); 13:88 (Spahr)). Baksa testified that no one
could construe the teachers as having supported Pandas in any way, reference text or otherwise,
which is evidenced by Jen Miller's statement that if the teachers
compromised with the Board, "maybe this will go away again."
(35:120 (Baksa); 12:136 (J. Miller)). It is patently evident
that by this point, the teachers were both weary from the
extended contention concerning the teaching of evolution, and
wary of retribution in the event they persisted in opposing
Buckingham and his cohorts on the Board.

Baksa testified that during this time period he
researched Pandas and ID, which
included directing his secretary to go to the webpage for the
Institute for Creation Research. (35:113-14 (Baksa); D-35). The
afore-referenced webpage states that Pandas "contains interpretations of classic
evidences in harmony with the creation model" and he testified on
cross-examination that he was aware of such information when he
researched Pandas. (35:114-15 (Baksa)). The fact that Baksa
contradicted this testimony on re-direct and stated that he had
never read the webpage has an unfortunate and negative impact on
his credibility in this case.

The
October 4, 2004 Board meeting agenda indicated that Nilsen had
accepted a donation of 60 copies of the text Pandas. (P-78 at 9). There is no evidence that
Bonsell, Buckingham or any other individual disclosed the source
of the donation until it was finally admitted at trial, despite
the fact that Larry Snook, a former Board member, inquired as to
the source of the donation at a November 2004 Board meeting.
(30:47 (Buckingham); 33:30 (Bonsell)).

The
testimony at trial stunningly revealed that Buckingham and
Bonsell tried to hide the source of the donations because it
showed, at the very least, the extraordinary measures taken to
ensure that students received a creationist alternative to
Darwin's theory of evoluti on. To illustrate, we note that at
January 3, 2005 depositions taken pursuant to an order of this
Court so Plaintiffs could decide whether to seek a temporary
restraining order, upon repeated questioning by Plaintiffs'
counsel on this point, neither Buckingham nor Bonsell provided
any information about Buckingham's involvement in the donation or
about a collection he took at his church. (30:50-56 (Buckingham); 33:31-35 (Bonsell) (emphasis added)).
Buckingham actually made a plea for donations to purchase
Pandas at his church, the Harmony
Grove Community Church, on a Sunday before services and a total
of $850 was collected as a result. (30:38-40 (Buckingham)). As proof of such
donation amount, Plaintiffs introduced into evidence a check in
the amount of $850 indorsed to Donald Bonsell, Alan Bonsell's
father, drawn on Buckingham's account jointly held with his wife,
with the notation "Of Pandas and People" appearing on the check.
(P-80; 30:46-47 (Buckingham)). Alan
Bonsell gave the money to his father who purchased the books.
(33:131-32 (Bonsell)). When Spahr
received the shipment of books and began to unpack them, she
discovered a catalogue from the company that sold the books
listing Pandas under "Creation
Science." (13:94-5 (Spahr); P-144 at
29).

When we were moved to question Bonsell regarding
this sequence of events at trial, he testified that his father
served as the conduit for the funds from Buckingham's church
because: "He agreed to – he said that he would take it, I
guess, off the table or whatever, because of seeing what was
going on, and with Mrs. Callahan complaining at the Board
meetings not using funds or whatever." (33:129 (Bonsell)).

As
we will discuss in more detail below, the inescapable truth is
that both Bonsell and Buckingham lied at their January 3, 2005
depositions about their knowledge of the source of the donation
for Pandas, which likely contributed
to Plaintiffs' election not to seek a temporary restraining order
at that time based upon a conflicting and incomplete factual
record. This mendacity was a clear and deliberate attempt to hide
the source of the donations by the Board President and the Chair
of the Curriculum Committee to further ensure that Dover students
received a creationist alternative to Darwin's theory of
evolution. We are accordingly presented with further compelling
evidence that Bonsell and Buckingham sought to conceal the
blatantly religious purpose behind the ID Policy.

In
September 2004, acting on instructions of the Board, Baksa
prepared a change to the biology curriculum which stated:
"Students will be made aware of gaps in Darwin's theory and of
other theories of evolution" and contained no reference text.
(P-73; 35:122 (Baksa)). The Court
has been presented with no evidence that the Board asked Baksa to
initiate such changes to the biology curriculum to improve
science education in the Dover school system, as will be
elaborated upon below.

The
Board Curriculum Committee met on October 7, 2004 to discuss
changing the biology curriculum, without inviting the science
teachers. (35:124 (Baksa)). As Casey
Brown was absent, the Board members present with Baksa were
Buckingham, Bonsell, and Harkins, and the meeting involved a
discussion of various positions regarding the proposed curriculum
change. (P-81; 35:125 (Baksa);
29:113 (Buckingham)). The Board
Curriculum Committee ultimately adopted, within a matter of
minutes, Bonsell's alternative, which states: "Students will be
made aware of gaps/problems in Darwin's theory and of other
theories of evolution, including but not limited to intelligent
design." (P-82; 35:125 (Baksa)). The
Board Curriculum Committee's proposed change also called for
Pandas to be cited as a reference
text. (35:125 (Baksa)). The
curriculum change proposed by the Board Curriculum Committee and
the change proposed by the administration and accepted by the
science faculty, were circulated to the full Board by memoranda
dated October 13, 2004. (P-84A; P-84B).

On
October 18, 2004, the Board passed by a 6-3 vote, a resolution
that amended the biology curriculum as follows:

Students will be made aware of gaps/problems in
Darwin's theory and of other theories of evolution including, but
not limited to, intelligent design. Note: Origins of Life is not
taught.

In
addition, the Board resolution stated that this subject is to be
covered in lecture form with Pandas to
be a reference book. (7:89-90 (C.
Brown); P-88; P-209 at 1646; P-84C). Board members Bonsell,
Buckingham, Harkins, Geesey, Cleaver, and Yingling voted for the
resolution with Noel Wenrich and Casey and Jeff Brown voting
against it. (7:89-90 (C. Brown);
P-88).

Compelling evidence was presented at trial that in
passing the resolution the Board deviated from its regular
practice in important respects. "The normal procedures were not
followed at all in making this change." (7:79 (C. Brown)). First, the Board typically
addressed curriculum changes an entire year in advance of
implementation; however, the change to the biology curriculum was
initiated during the 2004-05 school year to be effective that
year. (7:78-79 (C. Brown)). Second,
standard Board practice dictated two meetings to be held per
month, a planning meeting in which items for consideration were
listed on its agenda before they were listed for
resolution on the agenda at the action meeting held later in the
month. The change to the biology curriculum, however, was placed
on the Board's agenda for the first time during an action
meeting, which several witnesses testified to be irregular.
(7:24-25, 77-78 (C. Br own); 26:11 (Nilsen); 4:3-5 (B. Callahan); 29:118 (Buckingham)). Third, Board practice
called for the District Curriculum Committee to meet and discuss
the proposed curriculum change, which Nilsen suggested in this
case; however, not surprisingly, the Board overruled that
suggestion. (7:72-73 (C. Brown);
26:8-10 (Nilsen)). Although the
administration did send the proposed change to the District
Curriculum Committee and received feedback from two members,
including an opposition and a request for the District Curriculum
to meet, no evidence has been presented that either suggestion
was acted upon by the Board. (P-151; D-67; 7:80-82 (C. Brown); 35:7-8 (Baksa)). Finally, the Board brazenly
chose not to follow the advice of their only science- education
resources as the teachers were not included in the process of
drafting the language adopted by the Board Curriculum Committee.
(7:82-83 (C. Brown)).

In
addition to deviating from standard Board practice in multiple
respects, defense witnesses testified that the rush to bring the
curriculum change to a vote occurred because the issue had been
debated for the previous six months and more importantly, the
Board was about to lose two Board members, Wenrich and Cleaver,
who had been a part of those discussions. (26:10-12 (Nilsen); 33:113-14 (Bonsell)). The record contains no
evidence of any public Board meetings in which the Board
discussed ID; however, the evidence does show that the Board
discussed creationism within that six month period. In fact, the
evidence reveals that Buckingham wanted the Board to vote on the
resolution on October 18, 2004 because he thought he had
sufficient votes to pass the resolution adopted at the October 7,
2004 Board Curriculum Committee meeting. (29:113-16 (Buckingham)).

Prior to the vote at the October 18, 2004 meeting,
science teachers Spahr and Miller, as well as members of the
public spoke outwardly against the curriculum change. (13:41-42 (J. Miller); 13:88-93 (Spahr)). Spahr made clear in her
statement to the Board that the teachers' agreement to point out
"flaws/problems with Darwin's theory," not to teach origins of
life, and to have Pandas available as
a reference text, were all compromises with the Board Curriculum
Committee, after what she described as "a long and tiresome
process." (13:91-92 (Spahr)). She
additionally stated that the change was being railroaded through
without input from the teachers or the District Curriculum
Committee, and no member of the administration or Board
disagreed. (13:91-93 (Spahr);
35:126 (Baksa)). Finally, Spahr
warned the full Board that ID amounted to creationism and could
not be taught legally. (24:102
(Nilsen); 35:14-15 (Baksa)).

Baksa provided highly pertinent information
concerning the position of the teachers throughout this process.
He testified that the teachers did not support Pandas in any way, but that they made compromises
to insure the purchase of the biology book entitled Biology. (35:119-20
(Baksa)). Also, he testified that any suggestion the teachers
supported any part of the curriculum change must be soundly
rejected. (35:20-21 (Baksa)). The
unrebuted evidence reveals that the teachers had to make
unnecessary sacrifices and compromises advantageous toward Board
members, who were steadfastly working to inject religion in the
classroom, so that their students would have a biology textbook
that should have been approved as a matter of course.

Remarkably, the 6-3 vote at the October 18, 2004
meeting to approve the curriculum change occurred with absolutely
no discussion of the concept of ID, no discussion of how
presenting it to students would improve science education, and no
justification was offered by any Board member for the curriculum
change. (26:21 (Nilsen); 35:127-38 (Baksa); 8:36 (C. Brown); 8:76 (J. Brown); 12:139-40 (J. Miller); 13:102 (Spahr); 32:25-26, 40 (Cleaver); 30:23-25 (Buckingham); 31:182-83 (Geesey); 34:124-26 (Harkins); 6:105-06 (Eveland)). Furthermore, Board
members somewhat candidly conceded that they lacked sufficient
background in science to evaluate ID, and several of them
testified with equal frankness that they failed to understand the
substance of the curriculum change adopted on October 18, 2004.
(31:175, 181-82 (Geesey); 32:49-50 (Cleaver); 34:117-18, 124-25 (Harkins)).

In
fact, one unfortunate theme in this case is the striking
ignorance concerning the concept of ID amongst Board members.
Conspicuously, Board members who voted for the curriculum
change testified at trial that they had utterly no grasp of ID.
To illustrate, consider that Geesey testified she did not
understand the substance of the curriculum change, yet she voted
for it. (31:181-82 (Geesey);
29:11-12 (Buckingham);
Buckingham Dep. 1:59-61, January 3, 2005; 34:48-49 (Harkins); 33:112-13 (Bonsell); 26:21 (Nilsen)). Moreover, as she indicated
on multiple occasions, in voting for the curriculum change, Geesy
deferred completely to Bonsell and Buckingham. (31:154-55, 161-62, 168, 184-87, 190
(Geesey)). Second, Buckingham, Chair of the Curriculum Committee
at the time, admitted that he had no basis to know whether ID
amounted to good science as of the time of his first deposition,
which was two and a half months after the ID Policy was approved,
yet he voted for the curriculum change. (30:32-33 (Buckingham)). Third, Cleaver voted
for the curriculum change despite the teachers' objections, based
upon assurances from Bonsell. (32:23-25 (Cleaver)). Cleaver admittedly knew
nothing about ID, including the words comprising the phrase, as
she consistently referred to ID as "intelligence design"
throughout her testimony. In addition, Cleaver was bereft of any
understanding of Pandas except that
Spahr had said it was not a good science book which should not be
used in high school. (32:45-46
(Cleaver)). In addition, Superintendent Nilsen's entire
understanding of ID was that "evolution has a design." (26:49-50 (Nilsen)).

Despite this collective failure to understand the
concept of ID, which six Board members nonetheless felt was
appropriate to add to ninth grade biology class to improve
science education, the Board never heard from any person or
organization with scientific expertise about the curriculum
change, save for consistent but unwelcome advices from the
District's science teachers who uniformly opposed the change.
(29:109 (Buckingham)). In
disregarding the teachers' views, the Board ignored undeviating
opposition to the curriculum change by the one resource with
scientific expertise immediately at its disposal. The only
outside organizations which the Board consulted prior to the vote
were the Discovery Institute and TMLC, and it is clear that the
purpose of these contacts was to obtain legal advice, as opposed
to science education information. (33:111-12 (Bonsell); 29:130, 137-43, 30:10-14 (Buckingham)). The Board received
no materials, other than Pandas, to
assist them in making their vote. Nor did anyone on the Board or
in the administration ever contact the NAS, the AAAS, theÂ
National Science Teachers' Association, the National Association
of Biology Teachers, or any other organization for information
about ID or science education before or after voting for the
curriculum change. (33:113
(Bonsell); 30:24-27 (Buckingham)).
While there is no requirement that a school board contact any of
the afore-referenced organizations prior to enacting a curriculum
change, in this case a simple glance at any one of their websites
for additional information about ID and any potential it may have
to improve science education would have provided helpful
information to Board members who admittedly had no comprehension
whatsoever of ID. As Dr. Alters' expert testimony demonstrated,
all of these organizations have information about teaching
evolution readily available on the internet and they include
statements opposing the teaching of ID. (14:74-99 (Alters)).

Although the resolution passed, it was not without
opposition. Both the Superintendent and Assistant Superintendent,
Nilsen and Baksa, opposed the curriculum change. (35:126 (Baksa)). Baksa testified that he
still feels the curriculum change was wrong. (35:127 (Baksa)). Both Casey and Jeff Brown,
who voted against the resolution, resigned at the conclusion of
the October 18, 2004 Board meeting. The following excerpt from
Casey Brown's poignant resignation speech speaks volumes about
what had occurred within the Board by that time:

There has been a slow but steady marginalization
of some board members. Our opinions are no longer valued or
listened to. Our contributions have been minimized or not
acknowledged at all. A measure of that is the fact that I myself
have been twice asked within the past year if I was 'born again.'
No one has, nor should have the right, to ask that of a fellow
board member. An individual's religious beliefs should have no
impact on his or her ability to serve as a school board director,
nor should a person's beliefs be used as a yardstick to measure
the value of that service.

However, it has become increasingly evident that
it is the direction the board has now chosen to go, holding a
certain religious belief is of paramount importance.

Additionally, at the following meeting, Board
member Wenrich, who opposed the expedited vote on October 18,
2004 and engaged in parliamentary measures to have the vote
delayed until the community could properly debate the issue while
considering the science teachers' position, resigned and stated
the following:

I
was referred to as unpatriotic, and my religious beliefs were
questioned. I served in the U.S. Army for 11 years and six years
on the board. Seventeen years of my life have been devoted to
public service, and my religion is personal. It's between me,
God, and my pastor.

The
evidence clearly reveals that Board members who voted in favor of
the curriculum change blindly adopted the recommendations of the
architects of the ID Policy, Bonsell and Buckingham, with respect
to their decision to incorporate it as part of the high school
biology curriculum, while disregarding opposition by the science
teachers and administration. (31:154-68 (Geesey)).

After the curriculum was changed, Baksa was given
the task of preparing a statement to be read to students before
the evolution unit in biology commenced. The persuasive evidence
presented at trial demonstrates that the final version of the
statement communicated a very different message about the theory
of evolution than the language that Baksa and senior science
teacher Jen Miller proposed. (36:27
(Baksa)).

First, Baksa's initial draft of the statement
described Darwin's theory of evolution as the "dominant
scientific theory;" however, the Board removed such language
from the final version. (D-91; 36:22-24 (Baksa)). Second, Baksa's draft
stated that "there are gaps in Darwin's theory for which there is
yet no evidence;" however, the Board selectively edited
out the word "yet" so that the statement is read in a
considerably different light to be "there are gaps in Darwin's
theory for which there is no evidence." (D-91; 36:26-28 (Baksa)). Third, after Jen Miller
reviewed the statement at Baksa's sugge stion, she suggested that
language be added that there is a "significant amount of
evidence" supporting Darwin's theory. Although Baksa felt this
was an accurate statement about the scientific theory of
evolution, he removed such language because he understood that
the Board would not approve it as written. (D-91; 36:24-26 (Baksa)).

As
previously noted, the final version of the statement prepared by
Defendants to be read to students in ninth grade biology class
states, as follows:

The
Pennsylvania Academic Standards require students to learn about
Darwin's Theory of Evolution and eventually to take a
standardized test of which evolution is a part.

Because Darwin's Theory is a theory, it continues
to be tested as new evidence is discovered. The Theory is not a
fact. Gaps in the Theory exist for which there is no evidence. A
theory is defined as a well-tested explanation that unifies a
broad range of observations.

Intelligent Design is an explanation of the origin
of life that differs from Darwin's view. The reference book, Of
Pandas and People, is available for students who might be
interested in gaining an understanding of what Intelligent Design
actually involves.

With respect to any theory, students are
encouraged to keep an open mind. The school leaves the discussion
of the Origins of Life to individual students and their families.
As a Standards-driven district, class instruction focuses upon
preparing students to achieve proficiency on Standards-based
assessments.

P-124.

Subsequently, on January 6, 2005, the teachers
sent a memo to the Board requesting that they be released from
any obligation to read the statement. (36:97 (Linker)). The memo provides, in
relevant part, as follows:

You
have indicated that students may 'opt-out' of this portion [the
statement read to students at the beginning of the biology
evolution unit] of the class and that they will be excused and
monitored by an administrator. We respectfully exercise our right
to 'opt-out' of the statement portion of the class. We will
relinquish the classroom to an administrator and we will monitor
our own students. This request is based upon our considered
opinion that reading the statement violates our responsibilities
as professional educators as set forth in the Code of
Professional Practice and Conduct for Educators[.]

INTELLIGENT DESIGN IS NOT SCIENCE. INTELLIGENT
DESIGN IS NOT BIOLOGY. INTELLIGENT DESIGN IS NOT AN ACCEPTED
SCIENTIFIC THEORY.

I
believe that if I as the classroom teacher read the required
statement, my students will inevitably (and
understandably) believe that Intelligent Design is a valid
scientific theory, perhaps on par with the theory of evolution.
That is not true. To refer the students to 'Of Pandas and People'
as if it is a scientific resource breaches my ethical obligation
to provide them with scientific knowledge that is supported by
recognized scientific proof or theory.

P-121 (emphasis in original).

Administrators were thus compelled to read the
statement to ninth graders at Dover High School in January 2005
because of the refusal by the teachers to do so. (25:56-57 (Nilsen); 35:38 (Baksa)). The administrators read the
statement again in June 2005. By that time, Defendants had
modified the statement to refer to other, unnamed books in the
library that relate to ID; however Pandas remains the only book identified by name in
the statement. Defendants offered no evidence concerning whether
the other books can be found in the library, including whether
they are placed near Pandas. (P-131;
35:40, 42-43 (Baksa)).

As
we previously explained in detail, the Board mailed a
newsletter
to the entire Dover community in February 2005, which was
prepared in conjunction with the TMLC. (P-127). Additionally, on
April 23, 2005, lead defense expert Professor Behe made a
presentation on ID to Dover citizens at the Board's request.
(Joint Stip. of Fact ¶ 11).

Plaintiffs provided compelling testimony as to the
harm caused by the Board's ID Policy on their children, fam
ilies, and themselves in consistent, but personal ways.
Plaintiffs believe that ID is an inherently religious concept and
that its inclusion in the District's science curriculum
interferes with their rights to teach their children about
religion. (3:118-19 (Kitzmiller);
4:13-15 (B. Callahan); 6:77- 78 (C. Rehm); 6:106 (Eveland); 16:26, 30 (Stough); 17:147-48 (Leib)). Plaintiffs additionally
testified that their children confront challenges to their
religious beliefs at school because of the Board' s actions, that
the Board's actions have caused conflict within the family unit,
and that there is discord in the community. (6:77-78 (Rehm); 6:38-39 (Smith); 17:146-47 (Leib)).

The
testimony of Joel Leib, whose family has lived in Dover for
generations, is representative of the Plaintiffs' harm caused by
the Board's actions in enacting the ID Policy.

Well, it's driven a wedge where there hasn't been
a wedge before. People are afraid to talk to people for fear, and
that's happened to me. They're afraid to talk to me because I'm
on the wrong side of the fence.

Moreover, Board members and teachers opposing the
curriculum change and its implementation have been confronted
directly. First, Casey Brown testified that following her
opposition to the curriculum change on October 18, 2004,
Buckingham called her an atheist and Bonsell told her that she
would go to hell. (7:94-95; 8:32 (C. Brown)). Second, Angie Yingling was
coerced into voting for the curriculum change by Board members
accusing her of being an atheist and un-Christian. (15:95-97 (Sneath)). In addition, both Bryan
Rehm and Fred Callahan have been confronted in similarly hostile
ways, as have teachers in the DASD. (4:93-96 (B. Rehm); 8:115-16 (F. Callahan); 14:34-35 (Spahr)).

Although Defendants attempt to persuade this Court
that each Board member who voted for the biology curriculum
change did so for the secular purposed of improving science
education and to exercise critical thinking skills, their
contentions are simply irreconcilable with the record evidence.
Their asserted purposes are a sham, and they are accordingly
unavailing, for the reasons that follow.

We
initially note that the Supreme Court has instructed that while
courts are "normally deferential to a State's articulation of a
secular purpose, it is required that the statement of such
purpose be sincere and not a sham." Edwards, 482
U.S. at 586-87 (citing Wallace, 472 U.S. at 64)(Powell, J.,
concurring); id. at 75 (O'Connor, J.,
concurring in judgment) . Although as noted Defendants have
consistently asserted that the ID Policy was enacted for the
secular purposes of improving science education and encouraging
students to exercise critical thinking skills, the Board took
none of the steps that school officials would take if these
stated goals had truly been their objective. The Board consulted
no scientific materials. The Board contacted no scientists or
scientific organizations. The Board failed to consider the views
of the District's science teachers. The Board relied solely on
legal advice from two organizations with demonstrably religious,
cultural, and legal missions, the Discovery Institute and the
TMLC. Moreover, Defendants' asserted secular purpose of improving
science education is belied by the fact that most if not all of
the Board members who voted in favor of the biology curriculum
change conceded that they still do not know, nor have they ever
known, precisely what ID is. To assert a secular purpose against
this backdrop is ludicrous.

Finally, although Defendants have unceasingly
attempted in vain to distance themselves from their own actions
and statements, which culminated in repetitious, untruthful
testimony, such a strategy constitutes additional strong evidence
of improper purpose under the first prong of the Lemon test. As
exhaustively detailed herein, the thought leaders on the Board
made it their considered purpose to inject some form of
creationism into the science classrooms, and by the dint of their
personalities and persistence they were able to pull the majority
of the Board along in their collective wake.

Any
asserted secular purposes by the Board are a sham and are merely
secondary to a religious objective. McCreary, 125 S. Ct. at 2735; accord, e.g., Santa Fe, 530 U.S. at 308 ("it is . . . the
duty of the courts to 'distinguish a sham secular purpose from a
sincere one.'" (citation omitted)); Edwards, 482
U.S. at 586-87 ("While the Court is normally deferential to a
State's articulation of a secular purpose, it is required that
the statement of such purpose be sincere and not a sham.").
Defendants' previously referenced flagrant and insulting
falsehoods to the Court provide sufficient and compelling
evidence for us to deduce that any allegedly secular purposes
that have been offered in support of the ID Policy are equally
insincere.

Accordingly, we find that the secular purposes
claimed by the Board amount to a pretext for the Board's real
purpose, which was to promote religion in the public school
classroom, in violation of the Establishment Clause.

Although Defendants' actions have failed to pass
constitutional muster under the endorsement test and pursuant to
the purpose prong of Lemon, thus
making further inquiry unnecessary, we will briefly address the
final Lemon prong relevant to our
inquiry, which is effect, in the interest of completeness. The
Supreme Court has instructed the following with regard to the
Lemon effect prong:

The
core notion animating the requirement that . . . [an official
act's] 'principal or primary effect . . . be one that neither
advances nor inhibits religion,' is not only that government may
not be overtly hostile to religion but also that it may not place
its prestige, coercive authority, or resources behind a single
religious faith or behind religious belief in general, compelling
nonadherents to support the practices or proselytizing of favored
religious organizations and conveying the message that those who
do not contribute gladly are less than full members of the
community.

While the Third Circuit formally treats the
endorsement test and the Lemon test as
distinct inquiries to be treated in succession, it has continued
to recognize the relationship between the two. Moreover, because
the Lemon effect test largely covers
the same ground as the endorsement test, we will incorporate our
extensive factual findings and legal conclusions made under the
endorsement analysis by reference here, in accordance with Third
Circuit practice. Freethought, 334 F.3d at 269 (The court noted
that "effect under the Lemon test is
cognate to endorsement," and hence the court did not hesitate
simply to "incorporate [its] discussion of endorsement" into the
effect analysis.).

To
briefly reiterate, we first note that since ID is not science,
the conclusion is inescapable that the only real effect of the ID
Policy is the advancement of religion. SeeMcLean, 529 F. Supp. at 1272. Second, the disclaimer
read to students "has the effect of implicitly bolstering
alternative religious theories of origin by suggesting that
evolution is a problematic theory even in the field of science."
Selman,
390 F. Supp. 2d at 1308-09. Third, reading the disclaimer not
only disavows endorsement of educational materials but also
"juxtaposes that disavowal with an urging to contemplate
alternative religious concepts implies School Board approval of
religious principles." Freiler, 185 F.3d at 348.

The
effect of Defendants' actions in adopting the curriculum change
was to impose a religious view of biological origins into the
biology course, in violation of the Establishment Clause.

In
addition to the Establishment Clause challenge, Plaintiffs assert
that Defendants' actions in enacting the ID Policy violate their
rights under the Pennsylvania Constitution, specifically Art. I,
§ 3.23 Article I, § 3 of
the Pennsylvania
Constitution states the following:

All
men have a natural and indefeasible right to worship Almighty God
according to the dictates of their own consciences; no man can of
right be compelled to attend, erect or support any place of
worship, or to maintain any ministry against his consent; no
human authority can, in any case whatever, control or interfere
with the rights of conscience, and no preference shall ever be
given by law to any religious establishments or modes of
worship.

The
principles enunciated in this part of our Constitution reflected
a concern for the protection of the religious freedoms of
Pennsylvanians long before the first amendment to the United
States Constitution was made applicable to the states through the
fourteenth amendment . . . The protection of rights and freedoms
secured by this section of our Constitution, however, does not
transcend the protection of the first amendment of the United
States Constitution.

Wiest, 320 A.2d at
366.

Consequently, our discussion of the issues raised
under the federal constitution applies with equal vigor to the
issues raised by Plaintiffs that are grounded in our state
constitution. In light of this Court's prior ruling that the ID
Policy violates the Establishment Clause of the First Amendment,
the Court likewise concludes that the ID Policy is violative of
Plaintiffs' rights under the Pennsylvania Constitution.

The
proper application of both the endorsement and Lemon tests to the facts of this case makes it
abundantly clear that the Board's ID Policy violates the
Establishment Clause. In making this determination, we have
addressed the seminal question of whether ID is science. We have
concluded that it is not, and moreover that ID cannot uncouple
itself from its creationist, and thus religious, antecedents.

Both Defendants and many of the leading proponents
of ID make a bedrock assumption which is utterly false. Their
presupposition is that evolutionary theory is antithetical to a
belief in the existence of a supreme being and to religion in
general. Repeatedly in this trial, Plaintiffs' scientific experts
testified that the theory of evolution represents good science,
is overwhelmingly accepted by the scientific community, and that
it in no way conflicts with, nor does it deny, the existence of a
divine creator.

To
be sure, Darwin's theory of evolution is imperfect. However, the
fact that a scientific theory cannot yet render an explanation on
every point should not be used as a pretext to thrust an
untestable alternative hypothesis grounded in religion into the
science classroom or to misrepresent well-established scientific
propositions.

The
citizens of the Dover area were poorly served by the members of
the Board who voted for the ID Policy. It is ironic that several
of these individuals, who so staunchly and proudly touted their
religious convictions in public, would time and again lie to
cover their tracks and disguise the real purpose behind the ID
Policy.

With that said, we do not question that many of
the leading advocates of ID have bonafide and deeply held beliefs which
drive their scholarly endeavors. Nor do we controvert that ID
should continue to be studied, debated, and discussed. As stated,
our conclusion today is that it is unconstitutional to teach ID
as an alternative to evolution in a public school science
classroom.

Those who disagree with our holding will likely
mark it as the product of an activist judge. If so, they will
have erred as this is manifestly not an activist Court. Rather,
this case came to us as the result of the activism of an
ill-informed faction on a school board, aided by a national
public interest law firm eager to find a constitutional test case
on ID, who in combination drove the Board to adopt an imprudent
and ultimately unconstitutional policy. The breathtaking inanity
of the Board's decision is evident when consid ered against the
factual backdrop which has now been fully revealed through this
trial. The students, parents, and teachers of the Dover Area
School District deserved better than to be dragged into this
legal maelstrom, with its resulting utter waste of monetary and
personal resources.

To
preserve the separation of church and state mandated by the
Establishment Clause of the First Amendment to the United States
Constitution, and Art. I, § 3 of the Pennsylvania
Constitution, we will enter an order permanently enjoining
Defendants from maintaining the ID Policy in any school within
the Dover Area School District, from requiring teachers to
denigrate or disparage the scientific theory of evolution, and
from requiring teachers to refer to a religious, alternative
theory known as ID. We will also issue a declaratory judgment
that Plaintiffs' rights under the Constitutions of the United
States and the Commonwealth of Pennsylvania have been violated by
Defendants' actions. Defendants' actions in violation of
Plaintiffs' civil rights as guaranteed to them by the
Constitution of the United States and
42 U.S.C. § 1983 subject Defendants to liability with
respect to injunctive and declaratory relief, but also for
nominal damages and the reasonable value of Plaintiffs'
attorneys' services and costs incurred in vindicating Plaintiffs'
constitutional rights.

A declaratory judgment is hereby issued in favor of
Plaintiffs pursuant to
28 U.S.C. §§ 2201,
2202, and
42 U.S.C. § 1983 such that Defendants' ID Policy
violates the Establishment Clause of the First Amendment of the
Constitution of the United States and Art. I, § 3 of the
Constitution of the Commonwealth of Pennsylvania.

Pursuant to Fed.R.Civ.P.
65, Defendants are permanently enjoined from maintaining the
ID Policy in any school within the Dover Area School
District.

Because Plaintiffs seek nominal damages, Plaintiffs shall
file with the Court and serve on Defendants, their claim for
damages and a verified statement of any fees and/or costs to
which they claim entitlement. Defendants shall have the right to
object to any such fees and costs to the extent provided in the
applicable statutes and court rules

18As previously noted, both parties concede
that the Lemon test is applicable to
the case subjudice. [return]

19Plaintiffs are not claiming excessive
entanglement. Accordingly, Plaintiffs argue that the ID Policy is
violative of the first two prongs of the Lemon test, the purpose and effect prongs. [return]

20We disagree with Defendants' assertions
that the Court must first look for the Board's purpose in the
plain text of the challenged Policy and may consider other
indicia of purpose only if the Policy is ambiguous as to purpose.
Similarly, we do not find that individual Board members'
statements are irrelevant as a matter of law or that they cannot
be considered as part of the legislative history because they are
not statements by the full Board in its collective, corporate
capacity.

First, as Plaintiffs submit, at the most
superficial level, Defendants' "look at the text alone" approach
is on its face inapposite because ID is not defined in the
Policy. Accordingly, even if this Court was limited to the
disclaimer's language, which as stated we find that we are not,
statutory interpretation canons would require consideration of
the Policy's legislative history and historical context to
ascertain what is meant by the term ID. Second, with regard to
Defendants' contention that we should exclude i ndividual Board
members' statements from the legislative history on the ground
that they are not full pronouncements by the Board, the Supreme
Court has consistently held not only that legislative history can
and must be considered in ascertaining legislative purpose under
Lemon, but also that statements by a
measure's sponsors and chief proponents are strong indicia of
such purpose. McCreary, 125 S. Ct. at
2734 (although courts do not engage in "psychoanalysis of a
drafter's heart of hearts," they routinely and properly look to
individual legislators' public statements to determine
legislative purpose); Edwards, 482 U.S. at 586-88 (reliance upon a
statute's text and the detailed public comments of its sponsor
when determining the purpose of a state law requiring creationism
to be taught alongside evolution). [return]

21Consider, to illustrate, that Casey Brown
testified she recalled that Bonsell "expressed a desire to look
into bringing prayer and faith back into the schools," that
Bonsell mentioned the Bible and creationism, and felt "there
should be a fair and balanced presentation within the
curriculum." (Trial Tr. vol. 7, C.
Brown Test., 17-18, Sept. 29, 2005). [return]

22Moreover, in an email to one of the social
studies teachers on October 19, 2004, the day after the Board
passed the resolution at issue, Baksa said: "all kidding aside,
be careful what you ask for. I've been given a copy of the
Myth of Separation by David Barton to
review from Board members. Social Studies curriculum is next
year. Feel free to borrow my copy to get an idea where the board
is coming from." (36:14 (Baksa);
P-91). [return]